IMMIGRATION COURT
TRAINING CLASS
Handouts and Discussion Questions
THIS HANDOUT CAN BE FOUND AT:
http://www.hanoverlawpc.com/class/Immigration_Class_Outline_June_2016.docx
Proctor: Sean R. Hanover, Esq
Contact: 703-402-2723 //
Course Location:
Hanover Law Offices
2751 Prosperity Ave., Suite 150
Fairfax, VA 22031
DATES: 01 – 02 August 2016
START TIME: 10AM (breakfast offered at 9:30AM)
COMPLETION TIME: ~4PM depending on questions and presentations
AGENDA FOR THE IMMIGRATION COURT CLASS JUN 2016
FIRST DAY
0930-1000 Arrive at 2751 Prosperity Avenue. The nearest metro is Dunn Loring (Orange
Line towards Vienna, second to the last stop; there is plenty of free parking)
1000-1030 Webcast is turned on. Initial introductions and review of materials. Possibly a
Danish and coffee (bring a bagel and share!).
1030-1200 Client Management [handout – agreement]
a. Representation Agreement related to court activities (i.e. make sure
these points are covered in your Agreement when Court is involved)
b. Interviewing your client (best practices for modern interrogation and the problem of finding the truth)
c. Setting expectation levels for removal proceedings (determining relief
and what that relief means).
The NTA – how to read and what it means [handout – samples]
a. How and when to challenge allegations.
i. Be very careful to challenge findings that a particular crime is a
CIMT. If possible review all charging documents before the first
master calendar hearing.
ii. If your strategy includes challenging a particular allegation, see
if pleading relief makes sense even pending the determination of
that particular allegation.
Types of Relief [handout]
a. Voluntary Departure
b. Asylum/Withholding/CAT
c. Cancellation of Removal (42A/B). This is a separate class.
b. Waiver + relief (usually a subset of point “C” above). 212(c) and
212(h)/ CIMTs are permissible for 212(h) and the durational requirement
of 42A is relaxed.
c. Prosecutorial Discretion
Bond Ops
a. When are bonds processed and how.
b. When can you not get a bond.
c. [handout] Bond guide, EOIR
1200-1300 Submission Requirements [handout – you will also receive a soft copy for your
editing]
a. How to write a brief for immigration court
1. Practice writing a COR or Asylum brief. Provide samples.
Discuss.
2. NOTE! We will use what you write here during the mock trial
forum. Write wisely!
b. How to write a motion for immigration court
1. Practice writing a change of venue brief. Provide samples.
Discuss.
2. Show a sample bond motion. Discuss.
3. NOTE! We will use what you write here during the mock trial.
1300-1400 Working Lunch (we will review your writing at this time…pizza will be
available)
1400-1600 Ethics Discussion (2 hour credit)
a. Two huge pitfalls – frivolous filing and bogus asylum.
1. What is a frivolous filing?
2. Bogus asylum/marriage filings – punishable
b. Telling your clients the truth – when relief is just flat “iffy”
c. Advising clients on how to beat the immigration system
d. How extensive is your duty to investigate claims by your client?
[handout – Indian affidavits]
1600 - 1630 End Day One/Debrief
SECOND DAY
Breakfast is on your own.
Arrive at 2751 Prosperity Ave., Suite 150 at 10AM.
1000 – 1100 Finish any motions that need to be done, and critique writing. Provide feedback.
1100 – 1300 First court hearing. BOND MOTIONS. Each participant will have 15 minutes to
practice presenting in immigration court. This is a mock trial, based on the same facts/NTA you used to write your motion.
1300 – 1400 Break for lunch
1400 – 1600 Second court hearing. This is a chance to practice direct examination of a
witness. We will use the facts from the NTA. [handout – mock trial facts]
1600 – 1650 End seminar/de-brief
WHAT WE ARE DOING IN THIS CLASS
This is a court/trial focused class. In some respects, it is easier to describe what will not be covered in this course:
— We will not cover family/business based immigration (forms)
— We will not cover all forms of possible relief
— We do not discuss all possible implications of various scenarios (such as the permanent bar/double EWI with overstay)
— We do not cover BIA or appeals (very briefly)
We will be covering how to handle immigration court, and how to handle a detained docket based clientele.
We begin with the presumption you have no idea how to setup a practice. We will discuss the proper Agreement for Representation form, how to interview clients, how to brief the client on different types of common defensive court relief, how to prepare motions, what to expect at the two major types of hearings (Master Calendar Hearing (commonly called MCH) and Individual Calendar Hearings (commonly called IC)), how to request relief from the court, what to do when your client lies, and how to interrogate (err…ask pointed questions of) the client.
YOU ARE NOT EXPECTED TO HAVE ANY EXPERIENCE.
You will write a motion and present the same in a mock court environment. You will be critiqued and you will have a chance to practice a few times – we at Hanover Law firmly believe that it is by doing things that we learn. Ergo – you will be doing. Lots of “doing”!
TYPES OF RELIEF
The critical work that we will be referring to throughout the class is entitled: Relief from Removal. This is a guide for judges. The full document is attached. Please pay special note to the index, as we will be referring to it frequently.
For an online copy, visit: http://www.hanoverlawpc.com/class/EOIR-Relief_from_Removal.pdf
Unless you enjoy killing trees, I do not recommend printing the entire 250+ page document. Cut and paste relevant parts to your own briefs.
***** READ THIS HANDOUT *****
If you get nothing else from this class, this handout will serve you well in every trial prep you do.
ASYLUM- WITHHOLDING -CAT
Remember when to use discretion:
There are three types of “asylum” applications. The “vanilla” asylum is discretionary. That means that the court has lee-way to weigh factors such as family and whether this person really merits the relief. In withholding and CAT, there is no discretion. The Court is obligated to grant the relief if the applicant can prove he will be harmed and is part of a protected group.
Use the triangle:
Each asylum-witholding-CAT application must show the triangle in order to be granted (barring a strictly discretionary grant under asylum itself – regardless, always use this model):
FEAR OF RETURN (What are you afraid of?)
PROOF OF HARM (prior or future) SOCIAL GROUP
Must answer these questions at the start of any court action:
What is your client afraid of?
How is he/she part of a protected group warranting relief?
What harm has he/she suffered (or will suffer) if returned?
The hardest of these is definition of a social group.
EVERY ASYLUM/WITHOLDING/CAT case must answer these three elements, or you don’t have a case.
Important excerpts from:
(http://www.justice.gov/eoir/vll/benchbook/templates/benchbook%20asylum%20standard%20language.htm)
CREDIBILTY
[T]he following factors may be considered in the assessment of an applicant’s credibility:
demeanor,
candor,
responsiveness,
inherent plausibility of the claim,
the consistency between oral and written statements,
the internal consistency of such statements,
the consistency of such statements with evidence of record,
and any inaccuracy or falsehood in such statements, whether or not such inaccuracy or falsehood goes to the heart of the applicant’s claim.
(See: INA § 208(b)(1)(B)(iii); In re J-Y-C-, 24 I&N Dec. 260 (2007); In re S-B-, 24 I&N Dec. 42 (BIA 2006).)
BASIS FOR SOCIAL GROUP
race, religion, nationality, membership in a particular social group, or political opinion.
(See: INA § 101(a)(42)(A))
CORROBORATION (use of evidence to back-up the statements)
[W]here it is reasonable to expect corroborating evidence for certain alleged facts pertaining to the specifics of an applicant’s claim, such evidence must be provided as long as the applicant has the evidence or can reasonably obtain it. Matter of S-M-J-, 21 I&N Dec. at 725. If such evidence is unavailable, the applicant must explain its unavailability and the immigration judge must ensure that the applicant’s explanation is included in the record.
[Note that DHS will use this against your client – if he/she should have been able to produce a document, or obtain a statement, and did not – it will create a negative inference against your client]
CREDIBLE FEAR
To establish past persecution, the applicant must demonstrate that he suffered persecution in his country of nationality or, if stateless, in his country of last habitual residence, on account of an actual or imputed protected ground, and that he is unable or unwilling to return to, or avail himself of the protection of, that country because of such persecution.
(See: 8 C.F.R. § 1208.13(b)(1). [Note, in the case of withholding or CAT, the applicant must also prove by a preponderance of the evidence that the home state is either the cause of the persecution or will do nothing to stop it – that is, not only must a fear exist on account of being a member of a protected group, it must also be shown that the State will do nothing to stop it.])
[Fear] may be rebutted if the Department establishes by a preponderance of the evidence that the applicant’s fear is no longer well-founded due to a fundamental change in circumstances or that the applicant could avoid future persecution by relocating to another part of the country and that it would be reasonable to expect him to do so.
(See: 8 C.F.R. § 1208.13(b)(1)(i)-(ii)_
An applicant who fails to present a credible basis for a claim of past persecution may nevertheless prevail on a theory of future persecution as long as the factual predicate of the claim of future persecution is independent from the testimony found not to be credible.
Legal standard for any bars to asylum (omit if not applicable)
Filing Within One Year of Admission
Persecutor
Particularly Serious Crime
Serious Nonpolitical Crime
Terrorist/Danger to Security of U.S.
Firm Resettlement
WITHHOLDING:
NOTE: A particularly serious crime will bar withholding relief. Generally, if the applicant has an aggregate criminal record showing 5 years or more of time served, that is enough to make them excludable from this form of relief.
HOWEVER, a mere number of years alone is not a legal requirement. DHS will move to deny almost all withholding applications based on criminal conduct that is “particularly severe.” This includes all sex charges, drug distribution, and crimes of violence. You should be prepared to argue that a crime is not particularly severe. Be sure to include this in your brief.
To make this showing, the applicant must establish a “clear probability” of persecution, meaning that it is “more likely than not” that he will be subject to persecution on account of a protected ground if returned to the country from which he seeks withholding of removal.
(See: Cardoza-Fonseca, 480 U.S. 421)
The applicant’s credible testimony alone may be sufficient to sustain this burden of proof.
(See: 8 C.F.R. § 1208.16(b))
If an alien demonstrates that s/he suffered past persecution in the proposed country of removal, the burden shifts to the Department to demonstrate that a fundamental change in circumstances has occurred in that country or that the applicant could safely relocate to another area in the proposed country of removal.
(See: 8 C.F.R. § 1208.16(b)(1))
NOTE: When an Immigration Judge issues a decision granting an alien’s application for withholding of removal under section 241(b)(3) of the Immigration and Nationality Act, without a grant of asylum, the decision must include an explicit order of removal.
(See: Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008))
A grant of withholding does not prevent DHS from removing the alien to a country other than the one to which removal has been withheld. 8 C.F.R. §1208.16(f).
Practice Pointer – be careful when declaring countries for removal (at the first MCH).
CAT – Convention Against Torture
The Convention Against Torture and its implementing regulations provide that no person may be removed to a country where it is “more likely than not” that such person will be subject to torture.
“Torture” is defined, in part, as the intentional infliction of severe pain or suffering by, or at the instigation of, or with the consent or acquiescence of a public official. 8 C.F.R. § 1208.18(a)(1).
[This is a high bar, and generally, requires that any fear be directly related to government action (or clear inaction). Inaction should be shown through the use of police reports, or when the police are involved, but numerous and credible affidavits showing police involvement and reports made.]
A pattern of human rights violations alone is not sufficient to show that a particular person would be in danger of being subjected to torture upon his return to that country; specific grounds must exist to indicate that the applicant will be personally at risk of torture. Matter of S-V-, 22 I&N Dec. at 1313.
To meet his burden of proof, an applicant for CAT relief must establish that someone in his particular alleged circumstances is more likely than not to be tortured in the country designated for removal. Matter of J-E-, 23 I&N Dec. 291, 303-304 (BIA 2002); Matter of G-A-, 23 I&N Dec. 366, 371-72 (BIA 2002); Matter of M-B-A-, 23 I&N Dec. at 478-79.
IMMIGRATION ETHICS – ADVISING THE CLIENT
(This is an article that outlines common pitfalls of working with immigration clients. DO NOT become this lawyer.)
3 Ways to Tell If an Immigration Lawyer Is Lying to You
By Sarina Jensen
What should you do before hiring an immigration lawyer for any reason? If you are paying anyone to work for you, it is wise to check their credentials. This is a profession just like any other - there are ethical lawyers and unethical lawyers. Rather than finding out later that you have been the victim of an unethical lawyer, do the research before hiring them and protect yourself.
There are a few things that you should be aware of when hiring an immigration lawyer. Better safe than sorry is an old adage that is true in a lot of situations and it is even more so when it comes to your hard-earned money as well as your future. What are the three major things that should sound the alarm bells when you are considering an immigration attorney?